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Thomas v. United States

United States District Court, D. Oregon, Portland Division

April 12, 2018

DE JUAN THOMAS Plaintiffs,
v.
UNITED STATES Defendant.

          OPINION AND ORDER

          MICHAEL W. MOSMAN, CHIEF UNITED STATES DISTRICT JUDGE.

         This matter comes before me on Plaintiff Dejuan Thomas's pro se motion to correct his sentence under 28 U.S.C. § 2255. [151]. For the reasons below, I DENY Mr. Thomas's motion.

         BACKGROUND

         On May 5, 2016, Mr. Thomas pleaded guilty to tampering with a witness in violation of 18 U.S.C. § 1512(b)(1), [133], after a federal grand jury indicted Mr. Thomas on charges of sex trafficking by force and tampering with a witness. [69].

         The Presentencing Report ("PSR") calculated a base offense level of 28 and a total offense level of 26. [158] at 5. The PSR found that the advisory guideline range was between 78 and 97 months. [138] at 5. The parties agreed to the same offense levels and advisory guideline range in the plea agreement. [135]. After pleading guilty but prior to sentencing, Mr. Thomas, through his counsel, Tyl Bakker, argued a base offense level of 28 was incorrect because a cross reference from USSG § 2J1.2(c)(1) (obstruction of justice) to § 2X3.1 (accessory after the fact) did not apply. [146] at 2-3.

         At sentencing, I concluded the cross reference applied and Mr. Thomas's total offense level was 26. [150] at 4-5; [149] at 1. Accordingly, I sentenced Mr. Thomas to 90-months imprisonment, 3-years supervised release, and a $100 special assessment fee. [148].

         Mr. Thomas now moves to correct his sentence. He makes 4 claims for ineffective assistance of counsel:

1. Mr. Bakker relayed inaccurate information that induced Mr. Thomas to enter a plea agreement.
2. Mr. Bakker failed to adequately investigate legal issues concerning Mr. Thomas's plea.
3. Mr. Bakker failed to accurately inform Mr. Thomas about the consequences of pleading guilty.
4. Mr. Bakker failed to object to my finding that Mr. Thomas's base offense level was 28.

         [151] at 4-7. The government responded to that motion. [158]. Mr. Thomas replied. [159]. In his addendum, Mr. Thomas also argues that he is serving an illegal sentence. [164]. However, as part of the plea agreement, Mr. Thomas waived his right to appeal or collaterally attack his own conviction or sentence under 28 U.S.C. § 2255, except for claims regarding ineffective assistance of counsel. [135] at 3.

         LEGAL STANDARD

         I. Ineffective ...


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